Cox v. Apfel ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 14 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ALBERT L. COX,
Plaintiff-Appellant,
v. No. 98-7039
(D.C. No. 96-CV-636-B)
KENNETH S. APFEL, Commissioner, (E.D. Okla.)
Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
Pursuant to Fed. R. App. P. 43(c)(2), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff Albert L. Cox appeals from the denial of social security disability
and supplemental security income (SSI) benefits. He argues that: (1) the
administrative law judge (ALJ) erroneously relied conclusively on the
medical-vocational guidelines (the “grids”), 20 C.F.R. pt. 404, subpt. P, app. 2,
despite finding that he cannot stand or walk for long periods at a time; (2) the
testimony of the vocational expert (VE) cannot provide substantial evidence to
support the ALJ’s decision because the hypothetical did not include all of his
impairments; (3) the ALJ erroneously found that he had no significant
manipulative impairment; and (4) this is a borderline age case, and he should be
treated as of advanced age instead of closely approaching advanced age under the
grids. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.
Disability Claim
Plaintiff was born on April 21, 1941. He completed eleven years of school.
Plaintiff’s past relevant work includes twenty-eight or twenty-nine years
operating a jar-making machine at a glass company and about a year as a rotary
drill helper for his brother-in-law. He filed his claim for social security disability
and SSI benefits on March 11, 1994, alleging that he became disabled on May 5,
1991, due to back and knee pain, numbness in his legs and arms, breathing
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problems, depression, hypertension, headaches, and loss of grip strength. He was
last insured for social security disability benefits on December 31, 1996, and must
prove he became disabled before that date to secure those benefits. For SSI
benefits, he must prove only that he has become disabled. Plaintiff was
represented by counsel at the hearing before the ALJ, and has been represented
by different counsel since he filed this suit.
Discussion
The ALJ denied plaintiff’s claim at step five of the evaluation sequence.
See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). He
decided at step four that plaintiff cannot return to his past heavy to very heavy
work. At step five, he found that plaintiff retains the residual functional capacity
(RFC) to perform light work, but inconsistently stated both that plaintiff has no
significant nonexertional impairments and that he is restricted by requirements to
avoid respiratory irritants and to alternate sitting and standing or walking. He
obtained and mentioned vocational testimony, but ultimately relied conclusively
on the grids. Because the ALJ found that plaintiff had a limited or less education,
no transferable skills, and was of closely approaching advanced age (plaintiff
being fifty-four and a half years old at the time of the ALJ’s decision), he applied
Rule 202.11, 20 C.F.R. pt. 404, subpt. P, app. 2, to decide that plaintiff is not
disabled. The Appeals Council denied review, making the ALJ’s decision the
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final agency decision. Plaintiff then brought this suit. The district court adopted
the magistrate judge’s recommendation that the agency’s decision be affirmed.
We review the agency’s decision on the whole record to determine only
whether the factual findings are supported by substantial evidence and the correct
legal standards were applied. See Goatcher v. United States Dep’t of Health
& Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh the
evidence or substitute our judgment for that of the agency. See Kelley v. Chater ,
62 F.3d 335, 337 (10th Cir. 1995). We are persuaded by plaintiff’s claims of
error.
At step five, “the burden shifts to the [agency] to show that the claimant
retains the residual functional capacity (RFC) to do other work that exists in the
national economy.” Thompson v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993)
(citing Hargis v. Sullivan , 945 F.2d 1482, 1489 (10th Cir. 1991) and 42 U.S.C.
§ 423(d)(2)(A)). “[A]n ALJ may not rely conclusively on the grids unless he
finds (1) that the claimant has no significant nonexertional impairment, (2) that
the claimant can do the full range of work at some RFC level on a daily basis, and
(3) that the claimant can perform most of the jobs in that RFC level.” Id. at 1488.
In this case, the ALJ’s specific findings that plaintiff must avoid respiratory
irritants and cannot stand or walk for long periods precluded his conclusive
reliance on the grids. See Appellant’s App., Vol. II at 28 (findings 5 & 8); see
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also S.S.R. 83-14, 1983 WL 31254, at *1-*2 (discussing environmental restriction
as nonexertional impairment precluding reliance on grids); S.S.R. 83-12, 1983
WL 31253, at *4 (discussing necessity of obtaining vocational testimony when
claimant must alternate sitting and standing or walking).
We also agree that the VE’s testimony cannot provide substantial evidence
to support the ALJ’s decision. A hypothetical posed to a VE must relate the
claimant’s impairments “with precision.” Hargis , 945 F.2d at 1492 (quotation
omitted). The question the ALJ asked was faulty because it did not include
plaintiff’s need to avoid respiratory irritants, which the ALJ specifically found to
be true. See Appellant’s App., Vol. II at 28 (finding 8), 70. The agency has
provided no authority to support its argument that this court should take notice
that an environmental restriction to avoid respiratory irritants does not
significantly erode plaintiff’s occupational base. We therefore decline to reach
such a conclusion. Further, the hypothetical posed by plaintiff’s counsel that
included “temperature extremes, like dust and fumes,” id. at 74, is both internally
inconsistent and includes a restriction the ALJ did not find to be true–that
plaintiff should avoid temperature extremes. Therefore, the VE’s response to this
question does not constitute substantial evidence.
The ALJ made no specific finding at step five as to whether plaintiff has
a significant manipulative impairment. This was error. Because the ALJ found
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that plaintiff can do light work, and light work includes jobs requiring “pushing
and pulling of arm or leg controls,” 20 C.F.R. § 416.967(b), a manipulative
impairment would matter greatly. Essentially uncontroverted medical evidence
shows that plaintiff has complained of pain, numbness, tingling, and weakness in
his arms, hands, and fingers, see Appellant’s App., Vol. II at 168, 170-71, 186,
204, 212; has been diagnosed with bilateral carpal tunnel syndrome (thought to
be permanent), see id. at 186, 198, 204, 208, 211, 213, 236-37, 261, bilateral,
chronic tenosynovitis (an irritation of the tendon sheath), see id. at 204, 208, 211,
213, bilateral epicondylitis (tennis elbow), see id. at 213, and arthritic changes in
his fingers, see id. at 198; has had the tips of the middle and ring fingers of his
dominant right hand amputated in an accident at work, and they remained
hypersensitive to touch even after treatment, see id. at 197-99; had a crushing
injury to his left hand in another work-related accident, see id. at 159; and has
reduced grip strength, see id. at 202, 204-05. Plaintiff told one of his doctors that
his hand and arm problems resulted from the frequent repetitive motions required
by his lengthy employment with the glass company. See id. at 204.
On remand, the ALJ must make a specific finding as to whether plaintiff
has a significant manipulative impairment, as claimed. Moreover, the ALJ has
a duty to fully develop the record even when the claimant is represented by an
attorney, as in this case. See Thompson , 987 F.2d at 1492. For this reason, it is
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his obligation to exercise his considerable discretion to obtain additional medical
evidence if he believes it is necessary to evaluate plaintiff’s claimed disability.
See Hawkins v. Chater , 113 F.3d 1162, 1166-67 & n.5 (10th Cir. 1997).
We note also for the remand that the ALJ’s decision is internally
inconsistent in various respects and inaccurate with respect to plaintiff’s
testimony. Without attempting to list all of the discrepancies, we observe that
finding 5 contradicts itself as to the amount of weight plaintiff can lift and carry,
see Appellant’s App., Vol. II at 28, and finding 8 contradicts the body of the
decision as to plaintiff’s environmental restrictions, see id. Plaintiff did not
testify that lying on his stomach causes him pain and that he lies on his stomach
for hours each day watching television, see id. at 25; he testified that he lies on
his stomach because lying on his back causes him pain, see id. at 57. Plaintiff did
not contradict the medical evidence by stating that he had a stroke and was
diagnosed with arthritis. See id. at 25. One of his doctors noted that the
impairment to his face could indicate a stroke rather than Bells Palsy, see id.
at 234-35, and plaintiff himself clarified that he was ultimately diagnosed with
Bells Palsy, see id. at 66. There are references to arthritis and degenerative
changes in plaintiff’s medical records. See id. at 213, 217, 236-37, 264. Contrary
to the ALJ’s opinion, we have found no instance where plaintiff testified that he
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goes blind when he reads. See id. at 25. He did say that his eyes are bad, his
glasses do not help him, and that sunlight hurts his eyes. See id. at 49, 61.
Finally, because plaintiff was within six months of the next age category,
that is, advanced age, at the time the ALJ issued his decision, he erred by not
addressing whether plaintiff was of borderline age before choosing a rule from
the grids. See 20 C.F.R. §§ 404.1563(a), 416.963(a) (both stating: “[W]e will
not apply these age categories [in the grids] mechanically in a borderline
situation.”) Subsequent events obviate the need for the ALJ to address this
precise issue on remand, however. Plaintiff attained the age of fifty-five shortly
after the ALJ’s decision and before his insured status expired. He therefore
became of advanced age. Using the ALJ’s findings of limited or less education
and no transferable skills, plaintiff must now be deemed disabled as of April 21,
1996, under Rule 202.02 of the grids, 20 C.F.R. pt. 404, subpt. P, app. 2; see also
Daniels v. Apfel , 154 F.3d 1129, 1131-32 & n.4 (10th Cir. 1998) (holding when
claim remains pending after claimant’s insured status has expired, claimant’s age
for purposes of grids is determined at the time his insured status expired).
Plaintiff is entitled to an award of benefits at least from his fifty-fifth birthday.
On remand, the ALJ should determine whether plaintiff became disabled before
that date.
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The judgment of the United States District Court for the Eastern District
of Oklahoma is REVERSED, and the case is REMANDED with directions for the
district court to REMAND to the agency for additional proceedings consistent
with this order and judgment.
Entered for the Court
Michael R. Murphy
Circuit Judge
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